NORMS: (41-52)

Accuracy:
- Correct results are the goal of the criminal justice system. There is a high standard of proof to protect the
defendants from wrongful adjudication. Sometimes there is no way to know if justice is actually being
served.

- Ex: defendant could be of bad character but maybe innocent and there are no witnesses how do you
know whether to prosecute?

- There are so many factors that go into accuracy including: right to counsel, impartial jury, public trials,
and defendant’s right to call witnesses.

Fairness:
- What constitutes fair? Equality

Limited-Government Provisions:
- The bill of rights limits the ability of the government to interfere with the people (to protect us from a
central government).
- The fifth amendment is what truly protects the citizenry.

Efficiency:
- Balance between speedy trial and the rights of the party, there has been some damage to the system
because the Judge wants to clear cases from his calendar so it may gloss over too many cases it may lead
to conviction or release of defendants due to the need to clear the cases.

- Plea Bargaining really speeds up the process, but is this justice if the defendant pleads guilty just to
hedge his/her chances? Without plea-bargaining the system would bog down due to the amount of time
needed to try all the cases.
 PRETRIAL RELEASE: (764-774)
1. System begins at arrest and filing of the complaint.
2. After arrest a hearing is held pertaining to bail (arraignment) [in lesser crimes there is no hearing, the
police release the defendant with a set bail]. This is an issue of freedom. They set the conditions of
containment.

BAIL
Ways to get people out of jail:
1. Police let you out on bail or with a citation
2. Release on recognizance (sign a certification to show up again)
3. Supervised or Unsupervised Release (sometimes the defendant is required to get treatment)
4. Unsecured bond on failure of defendant to show; only applies if defendant fails to show
5. Deposit bond (10% program): defendant can get out by posting 10% of the bail amount but gets the
money back if they show up in court.
6. Full bond: secured; generally you go to a bailbondsman and he will keep the 10% and he basically
guarantees that you will show

*Stack v. Boyle p.769:

- Excessive bail under the 8th amend.
- Court finds that there is no right to pre-trial release.
- Your right to release is conditioned upon assurance that you will not flea the jurisdiction and will show
up in court for your hearings.
- Therefore, bail can only be so high as to provide adequate assurance that the defendant will show for
trial. If a bail amount which is greater than is usually fixed for a crime is applied evidence should be
produced to support that unusually high bail.

The Federal Reform Act of 1984 (note 8 p.773)

- Provides that a judicial officer may not impose a financial condition that results in the pretrial detention
of that person. This is to force the judge to use the preventative detention provisions of the statute.

- There is racism in the system, because the whites make bail far more often and those that make bail are
less often convicted because if in jail at time of trial it seems as though you are already guilty.
PREVENTIVE DETENTION
*United States v. Salerno p.774:
- No constitutional right to bail, you can be detained and it is not considered excessive.
- However, there are factors for determining whether bail can be denied: nature and seriousness of the
charges, substantiality of the Government’s evidence, the arrestee’s background and characteristics, and
the nature and seriousness of the danger posed by the suspect’s release.
- Furthermore, the government’s regulatory interest in community safety can, in appropriate
circumstances, outweigh an individual’s liberty interest.
- Court holds that preventative detention under the Bail Reform Act is regulatory and not punitive
(detention cannot be forever due to the speedy trial statute which requires a trial within 180 days of
indictment).
- Therefore if the goal is to protect community safety, then preventative detention is fine. However it
should not be used to ensure that defendant shows at trial.

Bail Reform Act etc.

- States are not subject to the Bail Reform Act. In their case they are more likely to detain in capital cases
because the defendant’s are more likely to flee.
- Judges might set bail high to prevent perpetrator from fleeing or being a danger to society. This is also
often the case with drug dealers, because they see bail as part of the cost of doing business.

Trentonian Factor: Appellate Judges do not reverse high bail because they don’t want to be put in the
Newspaper and have the perp injure someone else, or be seen as soft to the public in big cases.

*Rothgery v. Gillespie p.10 of the supplement:

- Public Defender does not have to be supplied at the bail hearing.
- This can be a problem because the defendant can hurt his case if he speaks at the hearing.

Bail Reform Act of 1982 §3142(c)(2) p. 50 of supplement: “the judicial officer may not impose a financial
condition that results in the pretrial detention of the person.”

Involuntary Civil Commitment:

- If acquitted by reason of insanity person is put in a mental institution for upwards of the maximum
sentence for the crime.
- This is not classified as punishment. It is for rehabilitation of the person’s mental health.
- Burden to prove need for civil commitment is “danger to self or others.”

Sexual Predator Laws:

- At the end of a sentence, a sexual predator is evaluated and the court can be persuaded that defendant
will be a continuing danger. Court can extend the commitment indefinitely.
- This is seen as ok because it is regulatory and not punishment
 PROSECUTORIAL DISCRETION IN CHARGING: P. 793
- At the federal level, the prosecutor chooses which cases to prosecute and then arrest warrants are issued
for those defendants.
- Cases which the prosecutor decides not to prosecute do not have arrests. They are kept secret.
- State level is different. Arrests are made first, then a complaint is issued and charges are rendered.
(State is far more public whereas fed is more private)

The state prosecutor can screen cases in 3 ways:

1. like the case and go for an indictment
2. dismiss the case if it is sucks; or
3. downgrade the crime and send it to municipal court

Attorney General:
- Has supervisory powers over the prosecutors even though the prosecutors are appointed by the governor.
- AG can take over any case and can even take over a whole office. He may do so where he wants to take
pressure off a prosecutor, the office, or feels that they are incompetent, corrupt, or protecting someone.

Standards of the Bar p.797:

1. Prosecutor doesn’t have to bring all charges that are supported by the evidence.
2. Prosecutor should not bring charges absent probable cause or sufficient admissible evidence to support
conviction.
3. Prosecutor should not bring or seek charges greater in number or degree than can reasonably be
supported at trial or to fairly reflect gravity of offense.
4. Where witness refuses to testify, Prosecutor should use subpoena power to compel.
5. The standards are in no way exhaustive and are not always applicable.

Merger: All similar crimes can merger the lesser offenses into the larger offenses.
- The prosecutor can bring a high number of charges but the judge will not sentence on them all.
- Reasons to bring all charges: To get the defendant to plea bargain or in case the prosecutor does not
think the greater charges will garner convictions.

Domestic Violence Crimes tough for the prosecutor to charge. This is because the wife often doesn’t want
them to and will refuse to testify.

*United States v. Armstrong p.800:

- Defendant claimed to be selectively prosecuted because he was black.
- He wanted discovery on the issue.
- Supreme Court held that the defendant failed to establish a threshold showing, which is that the
Government declined to prosecute similarly situated suspects of other races.
- Therefore, the defendant is not entitled to discovery on the selective prosecution issue.
- Rationale: The majority is concerned with efficiency because they feel that freely allowing discovery in
these matters will bog down the system.
- The dissent, however, is concerned with fairness and felt that the district court did not abuse its
discretion by allowing discovery.

Cont.
* Blackledge v. Perry p.808:
- Prosecutor brought charges for a harsher penalty after the defendant appealed his conviction.
- The Supreme Court held that the Prosecutor has a right to bring charges for an increased punishment but
not in order to punish defendants for appealing their convictions nor could the prosecutor bring greater
charges in order to discourage appeals.

JUDICIAL SCREENING – PRELIMINARY HEARINGS: p. 812

Preliminary hearings are basically a chance for the defendant to look at the prosecutor’s charging documents.
They are also to screen cases

*Cleman v. Alabama p.812:

- Counsel not provided for defendant at the preliminary hearing.
- Defendant claims that this was unconstitutional.
- Court states there has to be an analysis of:
o Whether there was a chance for substantial prejudice and
o Whether presence of counsel would avoid that prejudice.
- Court held that counsel would have affected the trial so counsel is necessary for preliminary hearings.

NOTES:
- Courts expect greater probable cause where no warrant was issued for the arrest.

- In most states the prosecutor must have notice of a preliminary hearing, which is ordered by a Judge.
- Therefore, a prosecutor would try to avoid this by indicting the defendant, which would make the
hearing moot.

- If the case is not good, the prosecutor may want to let it get to the preliminary hearing. That way, the
Judge will dismiss it and take it off the prosecutor’s hands without him having to take blame for it.
 GRAND JURY SCREENING: 818-834, 837-849
If the prosecutor does a good enough job indoctrinating the grand jury they should get whatever they want.

Grand Jury is a good way to screen cases because you get a good feel from the jury preliminarily. They are
chosen the same way that jurors are chosen for voire dire and there is more leeway for excusing them because it
can be a 24 month process.

*US v. Williams p824:

- Prosecutor failed to disclose substantial exculpatory evidence to the grand jury.
- Court said no supervisory authority to force prosecutor to disclose. Imposing such would run counter to
the traditional function of the grand jury (and it is not their job to consider exculpatory evidence).
- Only issue to be decided at grand jury is probable cause and not to decide guilt.
- Court holds that prosecutor was not required to provide the grand jury with the exculpatory evidence.
- The dissent however felt that the prosecutor has to be fair at the grand jury and should provide the info.

Notes:
- Rules of evidence for hearsay do not apply to grand jury.
- grand jury problems make no difference once a verdict has come down from the real jury and the
mistake is harmless beyond a reasonable doubt

PREPARING FOR ADJUDICATION

5th Amendment privilege against self-incrimination is the most important privilege!

Privilege can be used by a defendant who claims his innocence as well as the defendant who is guilty.

2 types of subpoenas:
1. to show up and talk(testify)
2. show up and bring stuff (duces tecum)

*Hoffman v. US p.838:
- Defendant was convicted of contempt for not answering questions about which he claimed his 5th
amend privilege.
- The contempt conviction was upheld on appeal. Supreme Court reversed holding that the privilege
applies to answers that would support a conviction or provide a link in the chain of evidence.
- “To sustain the privilege it need only be evident from the implications of the question in the setting in
which it is asked, that a responsive answer to the question or an explanation of why it cannot be
answered might be dangerous because injurious disclosure could result.”
- Therefore, the rule for denying privilege is that it must be perfectly clear, from a careful consideration
of all the circumstances in the case, that the witness is mistaken, and that the answers cannot possibly
have such tendency to incriminate.

Production could be testimonial in 3 circumstances:

1. existence of evidence
2. location of evidence
3. identification of evidence
Testimonial evidence requires a communicative act.
- 5th amendment only applies to testimonial acts not including participating in a lineup or submitting a
blood sample.
- Also, there is no privilege for documents, which were voluntarily created.

Compulsion of documents:
- Fisher v. US - Government wanted tax documents and the court found that they were not involuntarily
produced and that the incrimination happens at the creation of the documents therefore all
voluntarily made documents are discoverable.
- 5th amendment doesn’t apply because no one compelled you to make them.

Production Issue: The act of turning over documents can convey three things
1. the documents exist (government may not have known about their existence
2. location of the evidence (possession/control of the documents)
3. says “these are the records I believe you asked for”

Immunity:
- To get around the 5th amendment privilege the prosecutor can grant immunity.

2 types of immunity:
1. transactional immunity: covers all convictions related to the testimony.
2. use and fruits immunity: transaction not immunized but testimony and anything that comes from that
testimony (evidence as well) is immunized (so can still prosecute for that crime just cannot use that
evidence or testimony).

It is important for the prosecutor to build his case and collect the evidence before immunizing the witness.

*Kastigar v. US p. 844: Court holds that use immunity is constitutional

The immunities overlap both state and federal jurisdictions and the immunized testimony cannot be used for any
reason, including impeachment (with the exception of perjury)
 PRETRIAL MOTIONS: P.850
One view on the issue is to paper the government to death, i.e. file everything for which you have a colorable
claim (if the case is not very strong or important, the prosecutor may offer a plea or to dismiss to avoid all the
work). Furthermore, this approach may turn up some interesting evidence or may lock in the witnesses
testimony. Of course it may have the opposite effect by pissing off the prosecutor and limiting the client’s
access to a good plea bargain.

3 Goals of Pretrial Motion Practice:

1. smooth and efficient trials
2. prevents prejudicing the jury with inadmissible testimony
3. facilitates plea bargaining

MOTION TO SUPPRESS
- Simmons: Police seized D suitcase from a friend’s house and he asserted his right to privacy in
testimony regarding a motion to suppress.
- The government tried to use this testimony against him at trial and the court found that the testimony
from the hearing cannot be used against you, aside from for impeachment.
- Rationale: You should not have to sacrifice one constitutional right for another.
- Therefore, a person has standing to bring a motion to suppress when their “legitimate expectation of
privacy was violated”.

MOTION FOR CHANGE OF VENUE

Venue is where the crime occurred. Good idea to change venue when defendant feels he cannot get an impartial
jury.

*Irivn v. Dowd p.856: jurors are impartial if they can lay aside any impressions they had formed “and render a
verdict based on the evidence in court.”

Foreign Jury:
- In the states you can request a foreign jury as an alternative to a motion for change of venue (they bring
in jurors from another county).
- However this is not possible at the federal level because the districts are too large.

Murphy Test p.857: Two Pronged Inquiry

1. Whether the setting of the trial was inherently prejudicial; or
2. The jury selection process of which defendant complains permits an inference of actual prejudice.

Rule 21(a) motion to change venue based upon prejudice

Rule 21(b) motion to change venue based upon convenience of the parties

Note 7 p.858: Sept. 11 hijacker case court held that he was going to be prejudiced in every jurisdiction in the
US so no need to move it from Washington DC
 DISCOVERY: p. 858-890
When requesting discovery ask for everything you want because you want to make the state defend its rights not
to share. (there is one caveat, when the defense requests materials it triggers a reciprocal obligation so you
should not ask for anything you don’t want to give up [state can’t ask for things you don’t ask for])

*Brady v. MD p.863: Upon request, the government must provide all exculpatory evidence or else they
are violating due process.

*US v. Agurs p.863: Obvious exculpatory evidence creates duty to disclose. Puts burden on reviewing court
to look at entire trial to see if the exculpatory evidence would have affected the verdict (no longer a
constitutional violation)

*US v. Bagley p.865: (KILLS BRADY)

- Holds that in a Brady case involving exculpatory evidence the Agurs standard of whether “there is a
reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding
would have been different,” is used.
- This thereby says that failure to disclose exculpatory evidence can be excusable.
- Rationale: The test moves focus to the result, as opposed to the process.
o Brady test is far more stringent with more for the prosecutor to lose because the defendant would
be guaranteed a do-over.
o Bagley creates an incentive for the defense to look hard for exculpatory evidence because there
is no longer a guaranteed do-over.

*People v. Vilardi p.864: NY case that rejects the Bagley view and accepts the Brady view.

*AZ v. Youngblood p.874:

- Police failed to preserve potentially exculpatory bodily fluids.
- Court held that unless bad faith on part of the police, failure to preserve potentially exculpatory
evidence doesn’t constitute a denial of due process.
- Rationale: Court found that the state did not rely on the missing materials and that the defense had other
means of proving innocence. Plus, state complied with both Agurs and Brady.
- Dissent did not like the “Bad Faith” rule because it is almost impossible to prove and does not create a
bright line.

*Williams v. FL p.883:
- FL rule forced defendants to offer any alibi before the trial or the evidence was suppressed and in return
the prosecution had to inform defendant of any witnesses to be used to rebut.
- Defendant argued that this rule forced him to testify against himself in violation of the 5th and 14th
amendments.
- Court held that alibis are not compelled and the statute did not affect his decision to claim it
therefore the statute does not violate the 5th amendment.
 JOINDER AND SEVERANCE:
Rule 8(a) of Fed Rules of Crim Pro: JOINDER
- Offenses may be joined if of similar character, based on same transaction or part of same scheme or
plan.
- (b) Defendants can be joined if all took part in the same action not all must be charges in all counts

Rule 14 Fed Rules of Crim Pro: SEVERANCE

- (a) Counts or defendants can be severed if there will be prejudice to a defendant or the prosecution.
- (b) Court can ask prosecution to hear in camera any statement by the defendant that prosecution wishes
to use as evidence

There is potential for bias in joinder:

- with jury or
- “where there is smoke there is fire” theory and jury might confuse evidence and wrongly construe
- The more charges the more likely the conviction and joinder effect was greater where case was weak.

*State v. Reldan p.892:

- Man charged with the murder of 2 women and the cases were joined. Defendant wants to sever because
he feels it is prejudicial.
- Court establishes categories to define types of prejudice:
o When defendant may become embarrassed or confounded in presenting separate defenses
o When Jury may use the evidence of one of the crimes to infer guilt in the other
o When Jury may cumulate the evidence of the various crimes and find guilty where if severed
they would not have found guilt
- Court found that joinder was not prejudicial because evidence of one homicide would not be evidence of
the other.
 SPEEDY TRIAL: 897-913
Guaranteed by the 6th Amendment. Undue delay requires dismissal with prejudice.

*Barker v. Wingo p.898:

- There is a problem with speedy trial doctrine. On one hand you want to be fair and not delay trial for
long on the other hand you do not want to set criminals free due to delay.
- Court rejects the demand waiver rule which would require a defendant to request a speedy trial
because it goes against waiver law.

So court adopts a 4 factor balancing test:

1. length of delay (must have some sort of triggering mechanism)
2. reasons for delay (neutral dealy (back log, negligence) will weigh against government [however the
delay may be legitimate such as a missing witness]
3. defendants responsibility to assert his rights [theory is that is the defendant was being hurt by the delay
he would be screaming about it, if not screaming then not hurt by it]
4. prejudice to the defendant

- Factors 3 and 4 are the most important.

- Court found that he was not denied a speedy trial because he was waiting for result of his friends trial to
use the result in his own trial.

*Strunk v. US: p 909: Affirms remedy of dismissal with prejudice when a speedy trial violation is found.

Federal Speedy Trial Act:

- In the federal system the government has 6 months to try you
- But it often doesn’t arise because both sides want to delay
- Both sides usually agree to postpone the arraignment until right before trial to prevent triggering of the
statute.

Pre-Indictment Delay:
- US v. Marion - A Due Process violation would “if it were shown at trial that the pre-indictment delay
caused substantial prejudice to defendant’s rights to a fair trial and that the delay was an intentional
device to gain tactical advantage over the accused.”
 DEFENSE ETHICS: 914-931
Note 1 p.919: Justice White is almost advocating an anything goes attitude for the defense counsel with
exceptions for illegal acts such as making up evidence or to encourage lying. Zealous advocacy…

*Nix v. Whiteside p.924:

- Defendant wanted to commit perjury and lawyer knew and threatened to withdraw if defendant did so.
- Defendant moved for ineffective assistance of counsel.
- Court held that this was not ineffective assistance of counsel.

Note 4 p.930: Knowledge standard required to determine whether client will perjure himself.

RIGHT TO APPOINTED COUNSEL: 931-956

*Powell v. Alabama p.931: Defendant was indigent and couldn’t handle their own case, court found that to
satisfy due process defendant required counsel. (for capital cases)

*Betts v. Brady p.931: counsel need not be appointed in all cases and left the decision to the discretion of the
trial court where the standard would be failure to appoint counsel would be offensive to the common and
fundamental ideas of fairness. Overturned by Gideon.

*Gideon v. Wainwright p.931: Court held that in a criminal case the assistance of counsel is required to
satisfy the 6th amendment. (overturns Brady)

*Scott v. Illinois p.938:

- Defendant charged with theft, a misdemeanor, and there was a bench trial.
- Defendant appealed for lack of counsel.
- He argued that Argersinger requires appointment of counsel whenever there is a punishment of
imprisonment. Supreme Court holds that counsel is not necessary because jury trial not required
for petty offenses (6 month prison term or less).
- Court finds if defendant will be sentenced with imprisonment then the right to counsel arises.
- Note: A suspended sentence still leads to a right to counsel.

*Douglas v. CA p.946:
- Defendant was indigent and convicted. He had appointed counsel and he wanted to appeal.
- Court feels that failure to appoint counsel on first appeal is discriminatory because in CA everyone
gets case looked at on first appeal. Rationale that the affluent would have a much greater chance of
winning appeal because they could afford counsel.
- 6th amendment was not applied in Douglas because 6th only deals with criminal prosecution.
- Equal protection was never cited in the case but it appears to be the basis for the decision.
- Harlan in the dissent says cannot be equal protection because it would mean that Gideon was wrong.

*Ross v. Moffit p.951: picks up where Douglas left off.

- Case holds that an indigent is not required to have counsel for discretionary appeals to the Supreme
Court. The court feels that because there is no denial of access because the record is already developed
and the appeal is at the discretion of the court, that the indigent is not required to be given counsel.
- Furthermore, there is no Due Process argument because DP only deals with a fair trial.

When appealing Guilty Plea or Nolo Contendre: The case falls in the ambit of Douglas and a lawyer is
required for the first appeal.
 RIGHT OF SELF-REPRESENTATION: 957-73
*Faretta v. CA p.957:
- Question of whether the defendant can be allowed to proceed without counsel when he knowingly and
intelligently elects to do so.
- Court holds that the right to make your own defense is in the 6th amendment by implication.
o By stating that all rights go to the accused not to the lawyer of the accused the 6th amendment
provides the right of the defendant to make own defense.
- However, if D is disruptive in his own representation than his self representation can be terminated.
- Defendant should be made aware of the potential problems so they can make a wise choice.
- Dissent: attacks the historical analysis because the constitutional argument is lacking because there is
not express writing to grant this right.

Note 4 p. 966: Autonomy Right diminishes post-trial therefore upon appeal court can appoint counsel (no right
to appeal so out of the 6th amendment context)

Note 2 p.966: many people who represent themselves have an agenda and don’t want counsel because they
won’t go as far as the defendant wants them to. Either because of ethics or would not sit well with the bar.

Note 5 p.967: assistance of counsel is default position and the court will not ask if defendant wants to represent
himself. It’s up to the defendant to request to represent himself.

Note 9 p.968: competency to waive counsel. See p. 11 of supplement for Indiana v. Edwards.

INEFFECTIVE ASSISTANCE OF COUNSEL: 973-1004

*Strickland v. Washington p.973:
• Benchmark for judging any claim for ineffective assistance of counsel is whether counsel’s conduct so
undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.
• 2 components to the defendant’s argument must be proved:
o (1) the defendant must show that counsel’s performance was deficient (including errors so
serious that counsel was not functioning as counsel guaranteed by the 6th amendment)
o (2) the defendant must show that the deficient performance prejudiced the defense. (counsel’s
errors deprived the defendant of a fair trial).
• SO basically this is not a performance test, it is a test to see if the counsel prejudiced the defendant.
• Not guaranteed perfect assistance just acceptable assistance. Bad tactics are not reviewable because not
all tactics work out. Now about fair result where before it was about fair process.

Note 5 p.992: Freedom to choose counsel does not apply to appointed counsel. Morris v. Slappy

Note 11C p.1004: What happens where the appointed counsel knew the case would lose so purposely acted
ineffectively by doing nothing to get defendant new trial? Appellate court suggested in these circumstances that
the judge should ask the defendant if he was satisfied with the attorney in attempt to get him to waive his
ineffective assistance of counsel claim.
 PLEA BARGAINING AND GUILTY PLEAS: 1017-34
Fed Rule of Crim Pro 11 purtains to Pleas

Note 1 p.1011: there would be more trials without pleas which the author thinks may bring more reliable results.

Where a case has a lot of public notoriety it may be hard to plea bargain because a plea can give the appearance
of not guilty. (plus you don’t want to deny the public the right to know if actually guilty.)

Note 2 p.1012: Judge Easterbrook thinks plea bargaining is best because it is good for both sides.
- “Compromise better than conflict.”

Note 3 p.1012: most defendants plead because they think it will lead to a more lenient sentence, which is often
the case. Where a case goes to trial, the judge wants to seem firm on crime so they give harsher sentences
because it is more public.

CHARACTERISTICS OF A VALID GUILTY PLEA:

- Voluntary, knowing and intelligent

*Brady v. US p.1017:
- Defendant pled guilty to avoid the implementation of a statute which allows the jury to recommend the
death penalty. The statute was invalidated and the defendant appealed his plea.
- Supreme Court upheld the plea because he was sufficiently aware of his circumstances and he
made his choice voluntarily with competent counsel.
- Defendant was fully aware of the consequences and he met classic waiver requirements. Furthermore,
changes in the law do not invalidate pleas.

Plea vs. Statute:

Note 3 p.1022: Yates who drowned her children could not assert Jackson if the jury recommended the death
penalty because Yates involved a plea and Jackson involved a statute.

Wired Pleas: Where one plea is contingent on another person’s plea is ok so long as the cases are connected
somehow.

According to Fed R Crim Pro 11: Judicial participation in plea bargaining is not supposed to happen.
- Defendant must know what they are giving up in order to plead guilty.
- Defendant must know what they are pleading guilty to.
o Collateral consequences of the plea do not have to be explained by the prosecutor or the Judge
(such as immigration law which may require deportation if convicted or meghan’s law)

*North Carolina v. Alford p.1029:

- Defendant stated that he was pleading guilty to avoid the death sentence not because he was guilty.
- Defendant was then give the max sentence of 30 years and he later sought post conviction relief.
Holding: the Judge can accept a guilty plea if the facts seem to negate innocence even if the defendant
professed his innocence during his guilty plea.

Cont.
Factual basis for the plea is given under oath therefore, the defense attorney should do the questioning
not the Judge
- to control the communication of the facts and prevent the defendant from saying something he will
regret, will harm another defendant, or hurt the defendant in another case.
- Furthermore, it may be harder for the defendant to talk to the Judge than his own attorney.

No constitutional requirement for factual basis, plea only has to be knowing and intelligent.

The judge does not have to accept every guilty plea and a criminal defendant doesn’t have a constitutional right
to have their plea accepted.

Note 4 p.1033: not all states allow nolo contendere pleas including and there still must be a factual basis

MAKING AND BREAKING DEALS: 1034-54

*Bordenkircher v. Hayes p.1034:
- Issue: Can the prosecutor threaten to bring more charges to coerce the defendant into taking the deal?
- State Appeals said it was fine. The 6th circuit ended up reversing on Blackledge grounds. Supreme
Court held that Blackledge didn’t apply.
- “To punish a person because he has done what the law plainly allows him to do is a due process
violation of the most basic sort, and for an Agent of the State to pursue a course of action whose
objective is to penalize a person’s reliance on his legal rights is ‘patently unconstitutional.’ But in
the ‘give-and-take’ of plea bargaining, there is no such element of punishment or retaliation so
long as the accused is free to accept or reject the prosecution’s offer.”
- Dissent would eliminate the ability for vindictiveness by making the prosecutors show all charges to the
defendant and attorney.

Purpose of Bordenkircher and Blackledge is to prevent vindictiveness by the prosecutor.

- Coercion does not equal vindictiveness.
- Can there be ineffective assistance of counsel in the plea stage? YES
- In order to satisfy the prejudice requirement of ineffective assistance of counsel for a plea bargain, the
defendant must show that there is a reasonable probability that but for counsel’s errors, he would not
have pleaded guilty and would have insisted on going to trial.

BREAKING THE DEAL:

*Santobello v. NY p.1042:
- Defendant agreed to plea bargain in which prosecutor would make no sentence recommendation. A new
prosecutor was assigned to the case and he recommended a max sentence.
- Defendant objected but after discussions with the Judge it became clear that the recommendation had no
effect and the judge would have given max anyway.
- Supreme Court held that plea promises must be fulfilled and there is no harmless error because
no way to tell what effect the recommendation had on Judge.
- Remanded with 2 options: re-sentence with new Judge or allow defendant to withdraw the plea.
- Due process was most likely the constitutional issue because the defendant was denied the benefit of his
bargain and was unknowing.
o In Mabry, a broken deal was not a problem because the defendant accepted a later deal.
Cont.

*US v. Brechner p.1049:

- Defendant offered up info in exchange for a sentence reduction. The sentence reduction was
contingent upon the prosecutor’s assessment of defendant’s truthfulness, completeness, accuracy,
and cooperativeness.
- In debriefing the defendant lied about kickbacks but later admitted it and corrected it. The prosecutor did
not offer up the sentence reduction at sentencing and the defendant objected. Judge found that he was
cooperative and it was warranted.
- On appeal, the 2nd circuit felt the lies undermined the defendant’s credibility and made his
cooperation useless.

Note: When client lies you should have him admit it on the stand to avoid the gotcha moment.

PROCEDURAL EFFECT OF A GUILTY PLEA: 1055-60

*McMann v. Richardson p.1055:
- Whether a valid guilty plea can be impeached is a collateral matter by assertions of proof that the
plea was motivated by a prior coerced confession.
- The guilty plea cannot be coerced and since it is a waiver of trial, it is also a waiver of the right to
contest admissibility of evidence.

Note 3 p.1060: conditional pleas pursuant to Fed Rule of Crim Pro 11(b) can be had to preserve appellate
review of certain pretrial motions and the defendant may withdraw the plea if successful on the appeal.
 THE RIGHT TO AN IMPARTIAL JURY: 1061-82
*Duncan v. Lousiana p.1062: right to trial by jury is to prevent oppression by the government, protection
from an overzealous prosecutor and the compliant, biased, or eccentric judge.

General Policies:
- A petty offense (punishable by jail of 6 months or less) do not qualify for trial by jury.
- Jury nullification allows a jury to afford higher justice by refusing to enforce harsh laws
- societal interest in jury trials because the people’s interest in the trial is upheld to allow them to prevent
the arbitrary use of the judicial system
- jurors can ask questions of witnesses

Defendant can waive a jury trial with approval of court and consent of the government.
- Jury trial is often waived where the defendant has a mental health problem and they are at issue.
- Many jurors feel mental health is a poor excuse.
- Sometimes where the issues are very technical or facts are really disturbing is a reason to waive a jury.

*Farretta: 6th amendment guarantees right to represent oneself but where defendant waives jury the
prosecution must consent. Rationale: Because if defendant forced to have jury he has at least got what was
guaranteed by the constitution.

Size of Jury and Verdict:

- States don’t have to require 12 people to make up a Jury but shouldn’t have less than 6.
- Ballew v. Georgia states that 5 people is too small a jury.
- Federal cases must have unanimous verdicts but in state that is not the case.
- State must be 9-3 or better. [if only 6 jurors than they must be unanimous]
o Burch v. Louisiana a 5-1 verdict is unconstitutional with 6 jurors must be unanimous.

RIGHT TO IMPARTIAL JURY and VOIRE DIRE: 1061-1102

*Taylor v. Louisiana p.1075:
- Women cannot be excluded from the jury pool because it is not a representative cross-section.
- Court says women have different sensibilities than men therefore without women on the jury not a fair
representation of the community.
- Not an equal protection case it’s a 6th amendment case.

Proving Unfair Cross-section:

- D must show a systematic exclusion of a distinctive group.
- A distinctive group is (1) group defined and limited by some factor (like race or sex) (2) a group with a
common thread or basic similarity in attiture, ideas, or experience runs through the group and (3) a
community of interests among members of the group such that the group’s interest cannot be adequately
represented if the group is excluded fron the jury selection process.

Voire Dire used to make sure the jury is actually impartial.

Challenges:
1. cause: something that would render the juror unable to serve (i.e. bias)
2. peremptory: exclude a juror because attorney doesn’t want them on jury
RACISM IN JURY SELECTION
*Ham v. SC p.1083: Case about drug possession where the defendant was black civil rights activist.
- Attorney was asking the jurors questions regarding racism.
- Judge didn’t want them to be asked. The Supreme Court upheld the questions had to be asked.

*Rostino v. Ross
- Supreme Court held that a race based question didn’t have to be asked.
- Different from Ham because defendant in Ham was a civil rights activist whereas Rostino wasn’t a race
based case so the questions not necessary.

*Turner v. Murray: Capital Case

- Where crime is interracial, defendant can request that the jurors be questioned about race because it is
the Jury who decides the penalty in capital cases therefore there is a need to uncover racial bias.

Intrusive Voir Dire: Some questions may embarrass the jurors of the venir

VOIRE DIRE IN A HIGHLY CHARGED CRINIMAL PROSECUTION

*People v. Newton p.1089: “it is not required that the jurors be totally ignorant of the facts and issues involved.
It is sufficient if the juror can lay aside his impression or opinion and render a verdict on the evidence presented
in court.”

*US v. Salamone p.1094: Jurors were asked about NRA membership.

- Court holds that membership in the NRA should not exclude those jurors in a case involving gun laws.

2 types of bias: actual and implied

Wainright v. Witt: challenges for cause in a capital case should be treated no differently than non-capital
cases. *Gray v. Mississippi an error in dismissing a Juror reverses the death penalty but not the guilty
determination.

Witherspoon: If juror is so opposed to death penalty they would not impose regardless the verdict, than they
can be excluded for cause, these jurors are called Witherspoon excludables (they are not a distinct class).
- In reverse Witherspoon scenario where juror would vote for death regardless, could be excluded for
cause but didn’t matter because defendant used a peremptory.
- Court therefore held that loss of peremptory was not a constitutional issue, since juror was dismissed the
jury was impartial and that is the real issue.
 PEREMPTORY CHALLENGES AND BATSON – 1102-1125
*Batson v. Kentucky p.1104:
- Defendant was a black man and the Prosecutor used his peremptories to excuse all the blacks
from the jury. Defendant was denied a new jury.
- Supreme Court held that intentionally striking jurors based upon race is unconstitutional and it
must be proved by defendant. Prosecutor then has a chance to provide neutral reasoning for the
dismissals other than race.
- Court remanded to either pick new jury or to reverse the peremptories and sit that jury.

Batson 3 Step Process:

- Prima facie case of race discrimination made
o Step one is satisfied by producing evidence sufficient to permit the trial judge to draw and
inference that discrimination has occurred.
- Burden shifts, must show race neutral explanation (of any sort, even if not factually backed)
- If explanation is tendered, court decides if race discrimination was in fact proven.
- no standing requirement for a Batson challenge
- Batson applies to gender.

Notes:
- fair cross-section applies to jury pool not to actual jury
- Batson case opposed to Taylor case?
- striking all people who speak a certain language may be pretext for racial discrimination
- Miller-El cases only post Batson cases decided for the defendant.

Doesn’t take much to bring a Batson claims and almost all get to stage 3, however stage 3 relies upon trial
court’s measurement of prosecutor’s credibility and this is a fact issue given great deference upon appeal.
Consequently, Batson cases are either won at the trail level or not at all (a few cases aside).

- Batson applies to the actions of the defense counsel as well as the prosecution.
 JURY NULLIFICATION: 1126-41
*US v. Dougherty p.1126: Jury has an inherent power to disregard evidence and acquit if conscious provides.
- However Jury no longer informed of its right to nullify.

*US v. Thomas p.1127:

- Juror was dismissed and Court had to figure out if nullification was an appropriate reason.
- Court has the power to remove a juror under 23(b).
- However, if the juror is behaving badly but still deciding on the weight of the evidence then he can’t be
dismissed.
o difficult to separate nullification from bad or ignorant behavior.

- How do we do this and still protect the deliberation process and its secrecy?

Notes:
- Power not right to nullify do we acknowledge that the power exists? No.
- Defense counsel cannot ask the jury to nullify because as officer of the court you are asking the jurors to
violate their oath.
- Judge wanted to inform the jury of the potential lengthy sentence behind the crime (to be issued against
a young man) the underlying intent was to try for nullification. This was found to be improper because
guilt and sentencing are separate stages.
 CONFRONTATION CLAUSE: 1141-1157

*MD v. Craig p.1141: Can a child testify outside the defendant’s presence to prevent emotional disturbance or
a frozen witness?
- Court held this was ok because the defendant had the right to observe the proceedings and the defense
attorney would have right to cross-examination.
- Face-to-face confrontation was not necessary also because the jury had the ability to analyze the
testimony and witnesses demeanor.

*Olden v. Kentucky p.1153: White victim allegedly raped by a black defendant and another person which was
corroborated by a black person whom she was living.
- She then changed the story to say only raped by the defendant.
- Both the witness and the victim testified at trial and the Judge denied cross-examination about their
relationship.
- This violated the right to confrontation and was not harmless error.

Rape shield statutes prevents examination of the victims past sexual experiences

HEARSAY AND CONFRONTATION:

*Mattox Rule p.1157: Defendant can introduce testimony of dead witness from a previous trial where witness
was cross-examined by a person with a similar or identical interest.

*Ohio v, Roberts Rule p. 1157-8: same as Mattox rule but State wanted to introduce the testimony. Court
found that it was OK.

*Crawford v. Washington p.1163: Court reverses Roberts dicta which dealt with the indicia of reliability
thereby divorcing confrontation issues from reliability issues. Court says that confrontation is merely a rule
of procedure to be used to guarantee cross-examination.

*Giles p.14 of Supplement: Dying declarations are admissible as is forfeiture by wrongdoing where the
wrongdoing designed to prevent the witness from testifying.

- *Davis: reporting incident for help is not considered testimonial (i.e. call to 911)
- *Hammond: where a victim is interviewed by police that is testimonial. (this violates the confrontation
clause because it is testimonial)
RIGHT TO HAVE CO-DEFENDANT’S CONFESSION EXCLUDED
(BRUTON): 1177-91
Bruton: Incriminating confessions of co-defendant violate confrontation clause and are inadmissible.

*Cruz v. NY p.1178: Supreme Court holds that a confession is barred as evidence against a co-defendant
in a case called Bruton there, no chance for cross.
- -In Cruz however both defendants confessed and the confessions interlocked it doesn’t matter because
they will not be able to be separated by the jury so inadmissible.

*Gray v. MD p.1183: deals with redaction as a way to introduce a confession and satisfy Bruton.
- Court says redactions come close to being ineffective due to the facts and in reality no redaction has
taken place thereby denied by Bruton/Cruz.
- Therefore, in order to introduce a confession it must not suggest another party to the crime
(merely erasing the co-defendant’s name is ineffective).

Note 3 p.1191: the redaction changed the meaning of the confession so it violates the rights of the defendant.

Note 4 p.1191: pronouns can sometimes be used to satisfy the redaction

RIGHT TO COMPULSORY PROCESS: 1191-1203

Obtaining Witness In Your Favor:
*Washington v. Texas p.1191: defendants barred from calling co-defendants as witnesses because they are
expected to be biased. Supreme Court held that this was a violation of the 6th amendment because it denied
compulsory process and the justification was insufficient.

*US v. Burr p.1193: compulsory relates to documents as well as witnesses.

*Taylor v. Illinois p.1194: Supreme Court upholds the right of the Judge to bar witnesses where the
defendant waited to call the witnesses until the 11th hour as a tactic in violation of the discovery rule.
• Court said that misconduct implicates the whole fairness of the process which goes beyond tactical
issues; allowing these games would hurt the whole justice system.
• Judge did a credibility determination on the witnesss before barring them from testifying (credibility is
a jury decision).
 DEFENDANT’S RIGHT TO TESTIFY: 1203-1213
*rock v. Ark: Hypnosis Case
• Supreme Court rejected a decision to deny any testimony by the defendant that had been hypnotically
refreshed Rationale behind rule was that no way to know if actual recollection or was suggested during
the hypnosis).
• The Supreme Court felt it infringed upon the defendant’s right to testify on his own behalf.

*Griffin v. California p.1205: Prosecutor commented to the jury about the defendant’s non-testimony.
• The Judge instructed the Jury that not testifying on own behalf did not equate to being guilty.
• Supreme Court said that these types of statements violate the 5th amendment by allowing the jury to use
not testifying as evidence, which is like a penalty for not testifying.
• Dissent felt that the statements did not compel the defendant to testify and the limiting instruction was
sufficient and beneficial to his case because it instructed the jury not to speculate on the defendant’s
lack of testimony (jury would have noticed on their own).

*Carter v. Kentucky: defendants have a right to an instruction that the jury should make no inferences
from failure to testify. (what if defendant doesn’t want this instruction?)
• *Lakeside: held that instruction doesn’t violate self-incrimination clause.

Witness Sequestration: can be used to prevent the witnesses from becoming biased by the other witnesses’
testimony or from being influenced by it.
 JURY VERDICTS
Allen Charge p.1214: W
• When a jury is deadlocked the judge can give an instruction: “if much the larger number were for
conviction, a dissenting juror should consider whether his doubt was a reasonable one… If, upon the
other hand, the majority were for acquittal, the minority ought to ask themselves whether they might
reasonably doubt the correctness of a judgment which was not concurred by the majority.”

JURY TAMPERING
*Remmer- “in a criminal case, any private communication, contact, or tampering directly or indirectly, with a
juror during a trial about the presumptively prejudicial, if not made in pursuance of known rules of the court and
the instructions and directions of the court made during the trial with full knowledge of the parties.”

JURY MISCONDUCT
*People v. Halloway (CA)- court will presume prejudice, however the judge should interview the juror about
what they saw and what they told the other jurors, before dismissing the juror. (Even though the juror looked at
the newspaper, he may have been checking baseball scores.)

PREJUDICED JUROR CASES:

*US v. Thomas p.1127: the earlier case with the juror who was disruptive and refused to convict no matter
what. In cases where juror is disruptive the judge can dismiss when he refuses to be impartial.

• jury coin-flipped to decide whether to charge murder or manslaughter, the verdict came back as murder
and the judge declared a mistrial, this was considered misconduct.

• Juror had applied for a job at the DA’s office. Court found that this did not influence his thinking on the
case and the verdict was ok.

NOTES:
• it is hard to challenge a jury verdict because not supposed to see deliberations
• Polling the Jury to make sure the verdict is valid cannot impeach the verdict unless outsie influence has
affected the decision.

Inconsistent Verdict Theory: where jury reaches verdict but an varying grounds this is ok so long as the
received proper jury instructions
 SENTENCING: 1220-1240, 1269-1305
*Mistretta v. US p.1227:
• Purpose of guidelines was based on retribution, deterrence and keeping them off the street (not
rehabilitation);
• there was no parole and guidelines were mandatory with guarded discretion to grant upward or
downward departures. [this system prevents discrepancies or disparity between sentencing of similar
crimes.]

Notes:
• Disparity is a matter of opinion, because under the sentencing guidelines lesser crimes could be
punished harsher than heinous crimes.
• Guidelines subject to gamesmanship; prosecutor’s can choose what charges to bring to get the
punishment they feel is necessary can also affect sentence thru the plea.
• Real offense issue- court can consider what defendant really did not just what was plead to.

NOT IN SYLLABUS!! DOWNWARD ADJUSTMENTS ETC

*US v. Dunnigan p.1240: enhancing sentence for perjury at trial does not undermine the defendant’s
right to testify.

2 types of downward adjustments:

(1) when defendant’s participation in the crime was minimal
(2) when defendant clearly demonstrates acceptance of responsibility for his offense

*Koon v. US p.1245: 1) district court's decision to depart downward from applicable sentencing range under
Sentencing Guidelines was to be reviewed under abuse of discretion standard; (2) district court acted within its
discretion in departing downward five levels based on finding that suspect's misconduct contributed
significantly to provoking officers' offense behavior; (3) district court improperly based three-level downward
departure in part on fact that police officers would lose their jobs; (4) district court improperly based such three-
level departure in part on its belief that police officers posed low risk of recidivism; and (5) district court acted
within its discretion in considering police officers' high susceptibility to abuse in prison and fact that they were
subjected to successive state and federal prosecutions as factors upon which to base downward departure.

*Williams v. NY p.1258: due process is not violated when the judge gets additional out of court info to assist
him in the sentencing of the death penalty.
APPRENDI AND FORMALIZING SENTENCING

*Apprendi v. NJ p.1270: Defendant was convicted pursuant to guilty plea in the Superior Court, Law Division,
Cumberland County, of possession of firearm for unlawful purpose and unlawful possession of prohibited
weapon
• Defendant was sentenced to extended term under New Jersey's hate crime statute. Defendant appealed.
The Superior Court, Appellate Division affirmed. Defendant appealed. The New Jersey Supreme Court,
affirmed.
• US SC held that:
o (1) other than fact of prior conviction, any fact that increases penalty for crime beyond
prescribed statutory maximum must be submitted to jury and proved beyond reasonable doubt,
o (2) state hate crime statute which authorized increase in maximum prison sentence based on
judge's finding by preponderance of evidence that defendant acted with purpose to intimidate
victim based on particular characteristics of victim violated due process clause.

*Blakely v. Washington p.1286: trial court's sentencing of defendant to more than three years above the 53-
month statutory maximum of the standard range for his offense, on basis of sentencing judge's finding that
defendant acted with deliberate cruelty, violated defendant's Sixth Amendment right to trial by jury. (this is
because the extra sentence is a new accusation which is afforded the right to be heard by the jury.)

JUDICIAL VINDICTIVENESS

*NC .v Pearce p.1305:

• Judge who punishes a defendant for exercising appeal rights, violates due process.
• However a judge isn’t barred from giving a harsher sentence in a second trial so long as new facts
warrant the harsher sentence and the judge must put those reasons on the record.

*Wasman v. US
• There must be vindictiveness (punishment for exercising his right)
• A presumption arises and the government must overcome it.
• “reasonable likelihood” that the increased sentence was vindictive

No Presumption Cases:
• *Chaffin-no vindictiveness because new jury without knowledge of first jury and no personal stake in
the prior conviction.
• *TX v. McCullough-different sentencing judges so no presumption
• *Alabama v. Smith- involved guilty plea but after appeal the case goes to trial. Court felt there was no
vindictiveness because trial judge had no personal stake.
o (Judge can say at trial that there was a greater record to support the harsher sentence whereas as
the guilty plea all facts come from the defendant so the crime will not seem as bad)

Note: In overcoming the presumption the argument must be based upon objective facts.
 DOUBLE JEOPARDY: 1310-1331
Fifth Amendment protects defendants from being tried twice for the same crime.

- Same offense issue; What if the person is acquitted for GTA but then charged for joyriding for the same
occurrence? Does the greater offense charge for the lesser as well?

- Unit of prosecution issue; if multiple victims is it one offense or multiple offenses? Must look at the
crime statutes and compare them to the crime actually committed.

*Blockburger v. US p. 1313: multiple drug sales on different days, defendant ordered the drugs on day 1
during a delivery and then the 2nd set delivered the next day.
- Question of whether this was one or more crimes. (continuous transaction?)
- Court held that there were separate criminal impulses so it is 2 transactions. Must look to statute as
written by the legislature.
- Lesser included offense test: does each offense require proof of element different from the other?
o If so, not a lesser included offense.
o Here there are different elements so different offenses.

Rule of Lenity: Court must construe criminal statutes narrowly for benefit of defendant and should not convict
defendant on more offenses than the legislature authorized. Can get confusing because legislative intent is not
always clear.

*Gore v. US- defendant sentenced for three counts consecutively arising from one drug sale. Court found that
this was ok

Note: Blockburger works ok with lesser included offenses because of merger. Blockburger struggles where
offenses are different and the crimes fo not seem that different because differences have nothing to do with
actual crime (such as time of the offense).

*Brown v. Ohio p.1318: Defendant stole a car on Nov. 29, 1973 found joy riding in another jurisdiction on Dec
8, 1973.
- He was found guilty for both in trials in separate jurisdictions.
- Court found them to be separate acts because different days even though joy riding is a separate
included offense.
- Supreme Court reversed holding that they were the same crime and cant be tried twice for the
same crime, no matter if the lesser crime is prosecuted first.
o [this doesn’t apply where the greater offense has not yet arisen at the time of the trial for the
lesser crime i.e. assault and then victim dies after trial]

*Missouri v. Hunter p. 1325: 2 similar crime statutes but if convicted of both crimes they run concurrent.
• Mizz Supreme Court did a Blockburger analysis found double jeopardy.
• US Supreme Court found that no double jeopardy where only 1 trial and where the legislature is
clear it wants 2 punishments.

*Whalen-cant impose extra sentencing because rape is lesser included offense of the felony murder and
legislature didn’t intend multiple punishments.
 FORMER ACQUITTAL/COLLATERAL ESTOPPEL: 1331-1353
*Fong Foo v. US p.1331: Judge directed jury to acquit. State appealed, and the appellate court reversed because
there was no authority to give that direction.
• Supreme Court then upheld acquittal upon double jeopardy grounds.
o Any acquittal triggers double jeopardy.

*US v. Scott- Judge dismissed the case, it doesn’t matter the reasoning if it is for the defendant it is considered
an acquittal for double jeopardy reasons.
• If no resolution of facts than can retry the case. (ex: defendant bribed judge)

Note case - *US v. Sanford-defendant asked on 2nd trial after mistrial to dismiss the indictment because the
evidence at 1st trial was insufficient.
• Court agreed and dismissed. Supreme Court reversed because he was not in Jeopardy because the
2nd case hadn’t started yet.

*US v. Martin Linen Supply Co.- Supreme Court had differing views of Sanford because there is a 7 day
period for post trial motions, Court found therefore still in jeopardy.

Note: Prosecutor in federal court cannot appeal acquittals. Some states allow appeals of acquittals on legal
issues for precedent purposes only.

*Ashe v. Swenson p.1335: Robbery of a poker game.

- Defendant tried 1st time for one victim and acquitted; he was then tried again for another victim and
convicted.
- Question arose as to whether the second case was collaterally estopped. Court said estoppel is not
applied hyper-technically in criminal cases and it should be decided what Jury would had to have held to
acquit here
- If was that defendant was not a robber therefore, would be retrying for same crime and cannot retry.
- (Blockburger didn’t apply because there was more than one victim, so different elements)

Implied Acquittals:
- *Green v. US- defendant charged with 1st degree murder and convicted of 2nd degree. Prosecutor retried
because not acquitted.
o Supreme Court implied acquittal because it was a lesser offense.
MISTRIAL DOCTRINE

*Downum v. US p.1341: Prosecutor’s key witness not available so he asks to dismiss until witness can be
found.
- Judge does dismiss and restarts trial. Defendant was then convicted.
- Court likens this to a hung jury and says retrial is not barred however if stoppage interfered with
defendant’s ability to get acquittal it should be treated as an acquittal.
- [If there is a situation where statute of limitation has run than whether it is a mistrial or a dismissal
makes no difference because prosecutor can’t refile.]

IMPORTANT! - When does double jeopardy attach?

- In a bench trial when 1st witness is sworn in.
- In a Jury trial it attaches when the Jury is sworn in because
1. in most bench trials no opening statements
2. In jury trial must be at swearing of jury because prosecution will hear defendant’s opening
statement, therefore if the case is dismissed (and double jeopardy attached at 1st witness) the
prosecutor would know the defendant’s strategy.

Mistrial Test: “manifest necessity” or “ends of public justice test”

*Illinois v. Somerville bad indictment, if it went to trial it would be reversed so mistrial needed to prevent
implied acquittal if dismissed.
- Defendant says why should they get to retry where they messed up the indictment anyway.
- Supreme Court finds manifest necessity for mistrial because if convicted would be overturned
and retried anyway. (Court seems to ignore Downum Principle of best chance at acquittal)

- Defense Motion for Mistrial will never create a jeopardy bar except where prosecution intended to goad
defendant into asking for a mistrial (this is a really tough standard because must get in the mind of the
prosecutor) Oregon standard is probably better “whether prosecutor intended, or was indifferent to the
danger of, a mistrial”

DUAL SOVERIGNTY
- *Bartkus v. Illinois p.1348: defendant can’t use an acquittal or conviction from one to bar a trial in
another sovereignty (can’t use a state verdict to block a federal case)

*Abbate- fed can prosecute same conduct that underlies a state verdict
- Each state is also considered a different sovereignty
o State and municipal courts are still same soverign.

- Fed wont re-prosecute unless prior proceeding left fed interests demonstrably unvindicated. p.1352